working paper no. 23 Human Rights* by Jack Donnelly Graduate School of International Studies University of Denver 2201 South Gaylord Street Denver, CO 80208 USA [email protected] Posted on 14 January 2005 http://www.du.edu/gsis/hrhw/working/2005/23-donnelly-2005.pdf © 2005 Jack Donnelly. All rights reserved. * Forthcoming in John Dryzek, Bonnie Honig, and Anne Phillips, eds., Oxford Handbook of Political Theory (Oxford University Press, 2006). If citing this on-line version, please note the existence of this forthcoming paper-published volume. This paper may be freely circulated in electronic or hard copy provided it is not modified in any way, the rights of the author not infringed, and the paper is not quoted or cited without express permission of the author. The editors cannot guarantee a stable URL for any paper posted here, nor will they be responsible for notifying others if the URL is changed or the paper is taken off the site. Electronic copies of this paper may not be posted on any other website without express permission of the author. The posting of this paper on the hrhw working papers website does not constitute any position of opinion or judgment about the contents, arguments or claims made in the paper by the editors. For more information about the hrhw working papers series or website, please visit the site online at http://www.du.edu/gsis/hrhw/working. Human Rights Jack Donnelly Graduate School of International Studies University of Denver [email protected] Forthcoming in John Dryzek, Bonnie Honig, and Anne Phillips, eds., Oxford Handbook of Political Theory (Oxford University Press, 2006). If citing this on-line version, please note the existence of this forthcoming paper-published volume. Human rights are, literally, the rights we have simply because we are human. They are equal rights: one either is or is not a human being, and thus has exactly the same human rights as every other human being. They are inalienable rights: one cannot stop being a human being, and therefore cannot lose one's human rights, no matter how horribly one behaves nor how barbarously one is treated. Human rights are also universal rights, held by every human being, everywhere. This chapter offers a conceptual analysis of human rights, a brief account of their historical evolution, and an introduction to some leading theoretical controversies. 1. THE PRACTICE OF HUMAN RIGHTS1 Human rights are a complex and contested social practice that organizes relations between individuals, society, and the state around a distinctive set of substantive values implemented through equal and inalienable universal rights. A. Human Rights as Rights "Right" has two principal moral and political senses, rectitude and entitlement, characteristically expressed in talk of something being right (or wrong) and someone having a right. Denying you something that it would be right for you to enjoy in a just world is very different from denying you something -- even the same thing -- that you have a right to enjoy. Claims of rights ordinarily "trump" utility, social policy, and other grounds for action (Dworkin 1977, xi, 90). And you can do special things with rights. Adam's right to x with respect to Beth is not reducible to Beth's correlative duties. Should Beth fail to discharge her obligations, besides violating standards of rectitude and harming Adam, she violates his right. This makes her subject to special remedial claims. Furthermore, as the language of "exercising" rights suggests, Adam is actively in charge of the relationship. He may assert his right to x. If Beth still fails to discharge her obligation, he may press further claims, choose not to pursue the matter, or even excuse her, largely at her own discretion. Exercising rights is cumbersome and costly both to the parties and to society. It is thus to be avoided when possible. Nonetheless, the power to claim rights distinguishes having a right from 1 This section draws heavily on (Donnelly 2003, ch 1, 2). (Nickel 1987, ch. 1-3), (Shue 1996, ch. 1, 2, Afterward), and (Hayden 2001, ch. 16-22) cover similar ground. 2 simply being the (rights-less) beneficiary of someone else's obligation. "Having" (possessing) a right is of special value precisely when one does not "have" (enjoy) the object of that right. Possessing a right must not be confused with the respect it receives or the ease or frequency with which it is (or is not) enforced. Having a human right also should not be confused with enjoying the substance or object of that right. The fact that people are not executed arbitrarily may reflect nothing more than a government's lack of desire or limited capabilities. Even active protection may have nothing to do with a right (title) not to be executed. Rulers may, for example, act out of their sense of justice, instrumental calculations, or a divine injunction that does not endow subjects with rights. And even a right not to be executed arbitrarily may rest on custom or statute rather than being human. Human rights, as we shall see below, principally regulate relations between individuals, conceived of as citizens, and "their" state. But as rights (entitlements) they do more than establish standards of political legitimacy. They authorize and empower citizens to act to vindicate their rights. Human rights are not just abstract values such as liberty, equality, and security. They are rights, entitlements that ground particular social practices to realize those values. Human rights claims express not mere aspirations, suggestions, requests, or laudable ideas but rights-based demands. And in contrast to other grounds on which goods, services, and opportunities might be demanded -- for example, justice, utility, divine donation, contract, or beneficence -- human rights are owed to every human being, as a human being. B. The Source and Substance of Human Rights Turning from the "rights" to the "human" side of human rights, the central theoretical question is how being human gives rise to rights. To use an older idiom, what in (our) "nature" gives us "natural rights"? Needs is a frequent answer. (e.g. Maslow 1970, xiii, Green 1981, 55, Bay 1982, 67, Pogge 2001 [1995], 193, Gordon 1998, 728) But as Christian Bay, a leading advocate of a needs theory of human rights, admits "it is premature to speak of any empirically established needs beyond sustenance and safety" (1977, 17). And how needs give rise to rights is obscure. When we look more carefully, it appears that human rights rest instead on man's moral nature. They are grounded not in a descriptive account of psycho-biological needs but in a prescriptive account of human possibility. We have human rights not to the requisites for health but to those things "needed" for a life worthy of a human being. The "human nature" that grounds human rights is more a social project than a pre-social given. Human rights are at once a utopian ideal and a realistic practice for implementing that ideal; a sort of self-fulfilling moral prophecy. If the underlying moral vision of human nature is within the "natural" limits of possibility, then implementing those rights will make real that previously ideal nature. Human rights constitute individuals as a particular kind of political subject: free and equal rights- bearing citizens. And by defining the requirements and limits of legitimate government, they constitute states of a particular kind. Contemporary international human rights law presents one politically important vision of this process. There is a surprising degree of international consensus -- at least at the inter-state elite level -- on the list of rights in the 1948 Universal Declaration of Human Rights (see Morsink 1999) and the 1996 International Human Rights Covenants. (http://www.ohchr.org/english/law/index.htm) As of October 2004, the International Covenant on Economic, Social, and Cultural Rights had 150 3 parties and the International Covenant on Civil and Political Rights had 153 parties, (http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf) representing 79 percent of the total UN membership of 191. Few of the remaining states have expressed serious systematic objections of principle. These documents can be read as envisioning the mutual co-constitution of equal and autonomous citizens and democratic states fit to govern such rights-bearing citizens. (Howard and Donnelly 1986, Donnelly 2003, ch. 3, 4, 11) The state must treat its citizens not just with concern for their capacity to suffer and respect "as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived" but with equal concern and respect. (Dworkin 1977, 272) The list of rights in the Universal Declaration is readily derived from this conception. (See Donnelly 2003, xyz) C. Justifying Human Rights International human rights law, however, is silent about its theoretical foundations, except for scattered assertions that "all human beings are born free and equal in dignity and rights" (Universal Declaration, Article 1) and that human rights "derive from the inherent dignity of the human person" (Covenants, Preamble). The social contract tradition of political theory, which from Locke through Rawls has been closely associated with natural rights ideas, likewise simply assumes that they exist. Human rights are absent from the traditions of Western moral theory, among deontologists and teleologists alike, from Plato and Aristotle, through Hume, Kant, Hegel, and Nietzsche. Even today, general justifications of the idea or practice of human rights are peripheral to most theoretical discussions. (The principal exception is (Gewirth 1982, 1996).) For example, rights are absent from Kant's Grounding for the Metaphysics of Morals (1981) and the first part of "Theory and Practice" (1983, 61-92), which consider our categorical duties under the moral law; that is, right in the sense of rectitude.